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PRESIDENT'S VETO MESSAGE 



SPEECH 



MR C. C. CLAY, Jr., OF ALABAMA, 



PRESIDENT'S VETO MESSAGE, 



REJECTING THE 



INDIGENT INSANE BILL, 



AGAINST GIVING AWAY THE PUBLIC LANDS, 



DELIVERED IN THE SENATE OF THE UNITED STATES, JUNE 20, 1864 



WASHINGTON: 

PRINTED BY JOHN T. & LEM. TOWERS, 

1854. 



L 



In Exchange 
Duke University 
AUG 19 1936 






SPEECH 



o? 



MB, C. C. CLAY, Jr., OF ALABAMA, 



PRESIDENT'S VETO MESSAGE. 



Delivers:!) In the Senate of the United States, June 20, 1854. 



The Senate having under consideration the Veto Message of the Presi 
dent, rejecting the Bill which had passed Congress, for the benefit of the 
Indigent Insane, Mr. CLAY said : 

Mr, President ; I venture with proper diffidence to express my views 
upon a grave constitutional question, which has elicited the thorough and 
elaborate discussion of Senators of greater age and experience and of dis 
tinguished ability, I do so rather with the desire to justify my vote to my 
constituents than from any expectation of adding to the force of the argu- 
ments already adduced against this bill, The refusal of the President to 
sign it, and its return to the Senate with his objections, magnifies its im- 
portance in the public mind and excites universal inquiry as to its merits. 
This, together with the fact that some of my colleagues in the House of 
Representatives, belonging to the Democratic party, supported the bill, 
(which has been adverted to in the Senate,) urges me to explain the grounds 
of my opposition. 

Besides, Alabama is at this time, perhaps, more deeply interested than 
any other State in the subject-matter of the donation and objects of the 
. bounty contemplated in the bill. A few years since her legislature, moved 
by the eloquent and touching appeals of the lady who is regarded as patron- 
ess of this measure, made provision for the erection of an insane asylum. 
The fund provided proved insufficient to complete the necessary buildings, • 
which still remain unfinished and unprepared to receive patients. To dis- 
charge a heavy foreign and domestic debt, the people of Alabama have 
been for many years, and are still enduring onerous taxes, with noble 
patriotism and public virtue, and are ill able to contribute more towards 
the completion of a work commenced under circumstances that would have 
•excused them from embarking in any costly enterprise, however humane 
and praiseworthy, An erroneous impression has prevailed that the aid 
afforded by the passage of this bill might suffice to complete that work, 
when, in fact, the principal of the fund cannot be appropriated or dimin* 
ished, and even the interest (according to my interpretation of the bill) 



could not be applied to the erection of the asylum. Hence its progress has 
no doubt been regarded with more than ordinary anxiety by many of my 
constituents, whose sympathies have been deeply enlisted in behalf of a 
scheme for ameliorating the condition of that most unfortunate and piti- 
able of all classes of men, who, bereft of reason, sit in moral darkness 
more appalling than death. 

Again : the disposition of the public lands is, of all subjects of federal 
legislation, most interesting to Alabama. Near half of all the lands within 
her limits are still waste and unappropriated, and will probably remain so 
for many years unless there is a change of governmental policy. Inacces- 
sible and remote from market, sterile and unfit for cultivation, the lands are 
desirable only for timber or supposed mineral wealth, and will not, in my 
opinion, be settled during this century unless greatly reduced in price or 
enhanced in value by their intersection with railroads to the Gulf of Mexico 
or the Atlantic seaboard. Any policy which would divest the Federal Gov- 
ernment of title to those lands, subject them to the laws of the State, and 
render them, as they should be, tributary to her support and advancement 
would be regarded with favorable consideration by her people, if consistent 
with her constitutional rights. A proposition to grant those lands, or any 
large portion of them to the State, is perhaps the most enticing that could 
be offered. 

After mature consideration of all these suggestions of apparent State 
interest and of philanthropy, it was with sincere regret that I found myself 
constrained to vote against the bill. Yet I' trust and believe that few, if 
any, of those constituents with whom I have acted in political association, 
desire or expect me to vote for it. I owe my seat here to my uniform main- 
tenance of a strict construction of the Constitution and unfaltering opposi- 
tion to every encroachment on the rights or assumption of the duties of the 
States by the General Government* In common with the Democratic party 
of Alabama, I have ever been opposed to a distribution of the proceeds of 
the public lands among the States ; and I can discover no difference in 
principle or effect between distributing the land and distributing the money 
arising from the land. The only points of dissimilitude, in my opinion, be- 
tween this and the distribution scheme of 1842 are, that that gave uncon- 
ditionally, this upon condition ; that did not, this does prescribe the man- 
ner in which the fund distributed is to be used ; that treated the States as 
free and independent co-ordinate powers, this treats them as subordinate 
and dependant agencies ; that was a bold and shameless tribute to avarice,, 
this an ostensible offering to charity ; that appealed to the baser, this to the 
nobler passions of humanity. I regard this more dangerous than that, be- 
cause more insidious ; it invokes, in support of a bad principle, the best 
feelings of the heart. I regard it more objectionable than that, because it 
treats the States not merely as beneficiaries of Federal bounty, but as crea- 
tures of Federal will. 

The bill under consideration proposes to distribute ten millions of acres 
of public lands among the States, of which one hundred thousand are first 
granted to each, and the remainder to be distributed upon the compound 
ratio of geographical area and representation in the House of Representa- 
tives : those States in which there are public lands subject to saie at one 
dollar and a quarter per acre are to be confined to them in selecting their pro- 
portion ; land scrip is to be issued to those States in which there are no 
public lands to the amount of their shares, which shall not be entered by 
them, but shall be sold at not less than one dollar per acre, and subject to 



entry by their assignees ; each State is to pay all the expenses attending the 
management of its share of granted land out of its own treasury ; the gross 
proceeds of the sales of such lands or scrip are to be invested in safe stocks, 
the principal of which shall never be diminished, and the interest appropria- 
ted to the maintenance of the indigent insane within the several States ; the 
States are to account annually to the Secretary of the Interior for all lands 
or scrip sold ; and the fund is to be applied only to the treatment of those 
insane who are placed in certain prescribed institutions, managed after 
certain prescribed forms. 

I am opposed to the bill because I regard it both unconstitutional and 
inexpedient. All its advocates derive the power to pass it from one and the 
same clause of the Constitution, found in the third section and fourth arti- 
cle, as follows : 

"The Congress shall have power to dispose of and make all needful rules and 
regulations respecting the territory, or other property, belonging to the United 
States; and nothing in this Constitution shall be so construed as to prejudice any 
claims of the United States or of any particular State." 

This, they say, confers on Congress power to dispose of the public land 
in any manner not prohibited by the express terms of the Constitution, not 
only for purposes named, but for others not named in that instrument. In 
other words, they claim for Congress all the rights of an absolute owner or 
tenant in fee simple, who may do anything with his land not positively for- 
bidden by the laws of his country. And they make this claim by virtue of 
the term dispose of which they interpret, according to the definition of lex- 
icographers, to mean " to sell or to give, to apply to any purpose or employ. 
for any end." 

It may be safely conceded that the term dispose of is sometimes used in 
each of those senses, without admitting that it is used to expreses all of 
them in the Constitution. It would be most illogical to conclude from the 
definitions of a word, given in dictionaries, that it is intended to convey 
each and every signification when and wherever used. Such a conclusion 
would be most fallacious in regard to this very word dispose. Indeed, the 
primary and radical meaning of the word dispose is, to put or place apart 
or away, not to give or to sell. Its primary sense has been deflected and 
ramified into the various and opposing senses of to give and to sell by usage. 
Hence, its meaning is to be deduced from the circumstances under which it 
is used, and the context of the sentence where found. When we say a 
father has disposed of his son, we do not mean that he has sold or given him 
away. When we speak of the power of an absolute owner to dispose of his 
property, we are understood to mean that he may give or sell it, apply it to 
any purpose, or employ it for any end. But we never intend to impute such 
absolute power or unrestrained discretion to a trustee or agent, when we 
speak of the power of the one to dispose of the property of his principal, or of 
the others to dispose of the property of his cestui qui trust. If an Alabama 
planter should send a crop of cotton to a factor or other person in Mobile or 
New Orleans, with a general direction to dispose of it, he would scarcely 
assume the right to give it away. If a company in New York, owning a 
large body of wild land in Mississippi, should appoint an agent there, and 
confer on him by their sealed instrument power to dispose of it, not defining 
for what purpose or in what manner, he would never venture to convey it 
without a valuable consideration ; or if he did, no court would exonerate 
him from liability to his principals for the value of the property conveyed. 
The reason why the agent or trustee in the cases suggested could not in- 



J 



6 

terpret the term dispose of as conferring power to give away, is obvious, 
He holds the property not as his own or for himself but in trust for the benefit 
of another, whose rights would be prejudiced by giving it away. Fiduciary 
powers are never absolute or unlimited, but subordinate and limited — limit- 
ed not only by the express terms of the trust but by the intention with 
which it was created; subordinate to the rights of the maker, any abuse of 
which is no less a breach of the trust than exceeding its terms. Hence, I 
have been surprised to hear any Senator, more especially one professing to be- 
long to the straightest sect of strict constructionists, maintain, that the power 
of Congress over the public land was discretionary, absolute, and unlimited, 
save by the positive prohibitions of the Constitution. No one, I believe, 
asserts or believes that the public land belongs to Congress or the Federal 
Government, It owns no property. It is but the agent or trustee of the 
United States ; it holds the territory or public land in trust for their com- 
mon use and benefit, and can make no disposition of it not warranted by 
the letter or spirit of its charter, or prejudicial to the interest of the United 
States, or either of them. To give away property is to transfer it to another 
without equivalent or compensation. Such power over property is absolute, 
not limited, the power of the owner and not of his servant. Such power is 
irreconcilable with the general character of a trust estate, because adverse 
to the interest of the beneficiary. Such power is not conferred on trustees 
in any other than precise and positive language, and never inferred from 
doubtful or ambiguous terms. 

Hence, if there were no other words in the clause to explain or qualify 
the term dispose of, I should not understand it as intended to confer power 
to give away the territory of the United .States. But there are other words 
that negative this construction. The clause runs thus : " Congress shall 
have power to dispose of and make all needful rules and regulations respect- 
ing the territory or other property of the United States." If by dispose 
of was intended to give away, what rule or regulation could be needful ? 
These words imply value. They show that some system was to be adopted, 
some plan established in the disposition of the territory. But, surely, it 
was never contemplated by the framers of the Constitution to invest Con- 
gress with power to make rules and regulations for giving away the public 
lands. If they had designed to confer such absolute power over the terri- 
tory, they would not have deemed rules and regulations respecting it 
necessary. 

Again : following territory we find the words " or other property." Ter- 
ritory is uniformly, understood to signify land, and I presume all will con- 
cede that the words " or other property," were used in contra-distinction to 
territory, and intended to embrace other species of property than land. 
Otherwise, the words " or other property" are not merely tautologous, but 
senseless and absurd. The framers of the Constitution certainly knew what 
every one knows, that property embraces money as well as land ; in short 
every kind of estate, real, personal, or mixed. Such is not only its technical, 
but its popular import also. If so, then over everything which may 
be called property, and may belong to the United States, Congress 
has the same power, conferred in the same clause, and in the same lan- 
guage ; which is to dispose of and make all needful rules and regulations 
respecting it. We have the same power to dispose of land, whether wild 
or improved, navy-yards,* dock-yards, arsenals, and forts, the navy, arms and 
munitions of war, and the money of the United States. If our power over 
the public domain is plenary, so it is over the public money, if we can make 



gratuitous donations of one kind of property, so we may of all others. If 
we can destribute land, we may money. The Constitution was framed, 
with no purpose of giving greater power over the public land than over the 
public money. Why should such discrimination or distinction have been 
made ? Why should we make it ? What is the difference between dis- 
tributing ten millions of dollars among the States, and dividing among 
them ten millions of acres of land, worth one dollar per acre ? Why not 
distribute money if you can purchase land for distribution with the money ? 
The land was bought with money raised by taxation ; it will sell for money 
and diminish taxation. The land is as much a common federal fund as the 
money. It will serve the same purpose to pay the debts and provide for 
the common defense and general welfare. There is no substantial differ- 
ence between taxing the people to raise money for distribution, and taxing 
them to buy land for division among the States, or between dividing land 
bought with their money, and money for which their land was sold. The 
principle and effect of both policies is identical. I could vote to give away 
the public money to the States, or to individuals, with as little scruple as 
I could vote to give them the public land. 

If the words " dispose of," can be fairly interpreted to give away, then it 
seems to me undeniable that the framers of the Constitution conferred on 
Congress the power to give away every species of public property the Uni- 
ted States might ever acquire, unless it can be shown that the words " or 
other property," were used as synonymous with territory, or as not em- 
bracing money. No one asserts they were used to express the same thing 
with territory ; all admit that both or and other denote something different 
from territory or land. But some Senators maintain that the word property 
was not intended to mean money; in other words, that it means every sort 
of estate that may be held by the United States, except money. If so, then 
the word property was used in a sense neither technical nor popular ; in a 
different sense from that of law-makers and law expounders, lexicographers 
and the masses who speak the English language. Credat Jiidaus Apella t 

How, then, can any Senator conclude that Congress has power to dispose 
of money only for those purposes named in the Constitution, but may dis- 
pose of land for other purposes not named in that instrument — that is, in 
gratuitous donations to States or individuals. If because the Constitution, 
in conferring power over territory, does not specify the purpose to which 
it shall be applied, Congress may dispose of it at discretion, what other 
limitation is there on its power over the navy and army ? The Constitution 
gives Congress power to provide and maintain a navy, and to raise and 
support armies, without annexing to either grant, the end to which it shall 
be employed. Can it, therefore, be maintained that Congress may give the 
public ships to the several States, or the material of the army, the forts, 
barracks, and arsenals, to individuals for private alms-houses or hospitals ? 

Again, the section and sentence of the Constitution to which reference 
has been made, as defining the purposes to which money shall be applied, 
is rather a limitation on the power of taxation, than of disbursement, and 
might be transposed without altering its meaning, so as to read, " Congress 
shall have tower, in order to pay the debts and provide for the common 
defence and general welfare, to lay and collect taxes," &c. The purpose of 
taxation, no less than of money raised by taxation, is thus clearly defined. 

But taxation was not the only mode of raising money contemplated by 
the framers of the Constitution. .In the same article and section, is another 
clause, conferring power to borrow money on the credit of the United 



8 

States, which is as clear, distinct, substantive and broad, as the power to 
dispose of territory. Yet who will pretend that Congress has power to 
borrow money to distribute among the States for the indigent insane, or 
for any other purpose not named in the ConstitutioD. 

Nor was this the only other source whence public money was expected 
. to be raised. The territory was looked to for revenue in aid and mitigation 
of taxation. The acts of cession of the several States to the United States, 
express very clearly that, idea; they all signify that it was to be a common 
fund, for the use and benefit of the United States, in proportion to the tax 
paid by them to the Federal Government ; or in other words, it was to be 
sold, and the money proceeds, applied so as to relieve each State of its 
proportion of taxation. All concede that this was one of the purposes for 
which the territory was to be appropriated. If it was intended to raise any 
revenue from the sale of lands, why should the Constitution have conferred 
the power to give away lands rather than money, since, giving either would 
produce the same effect in diminishing the money fund and increasing tax- 
ation ? Why empower Congress to give the means of revenue, but not the 
revenue? It is impeaching the wisdom of the framers of the Constitution, 
to suppose them guilty of any thing so paradoxical. 

Independent of the Constitution and deeds of cession, there is in the con- 
dition of the country at the time those instruments were executed, sufficient 
to satisfy my mind that the territory was regarded as a common fund, to 
the amount of its money value, transferred to the United States.' We were 
just out of an eight years war, in which had been expended all we could 
obtain at home or abroad, either by borrowing or taxation. Federal and 
State treasuries were exhausted ; the Government was bankrupt ; our re- 
sources were narrow and precarious, and we were oppressed by a great and 
growing debt. Under such circumstances it would have been contrary to 
the instincts of ordinary interest and the teachings of enlightened conscience, 
to have empowered Congress to grant at discretion the land fund, the only 
present and most promising prospective source of revenue. The far-famed 
wisdom and high-souled virtue of the framers of the Federal Constitution, 
forbid my believing that they would thus have imperiled the public honor 
and the public interests. 

The condition of our country, the language of the deeds of cession, and 
of the Constitution, all impress me with the opinion that the power confer- 
red on Congress over the public lands, is that of # an ordinary trustee or 
agent, to dispose of it for its money value, which value should be used for 
the common benefit of all the States, in relieving them to that extent from 
taxation. I do not find any thing to warrant the belief that the Constitu- 
tion confers greater power in the disposition of the public lands than the 
public money, the navy, or other property of the United States. 

The dissimilar nature and uses of the several kinds of property, render 
it necessary to adopt different rules and regulations in disposing of them. 
Money being the common medium of exchange and measure of value, is 
disposed of in paying debts of the Government, supporting the military and 
civil list, constructing navies, and erecting buildings necessary for the pub- 
lic service. Land being useless to the Government for the purposes of cul- 
tivation, and only valuable to it so far as it can be converted into money, 
is disposed of by sale. In order to effect its sale it is proper to encourage 
settlements. With a view to its speedy settlement and the realization of 
its money value, it becomes necessary to grant portions of it to local objects, 
just as an individual proprietor of a large tract of wild land, who had not 



9 

power to cultivate and wished to sell it, would give a portion upon assur- 
ance of indemnity in the sale of the remainder. If the effect of the grant 
be to hasten the sale and settlement of the country, and enhance its value 
to the full extent of the grant, and such be the intention with which it is 
made, it is in accordance with the spirit of the Constitution; it is disposing 
of the lands for its money value. 

Upon this principle I have voted, and can vote, to grant alternate sec- 
tions to the States within which they lie for railroads, in consideration of 
doubling the price of the remaining sections. Upon the same principle I 
can approve the grants which have been systematically made to the new 
States on their admission into the Union of 16 sections for common schools, 
and of other sections for colleges and seats of government. They were 
made upon ample consideration ; the disclaimer by those States of right or 
title to the waste and unappropriated lands within their limits ; the sur- 
render of the disposition of them to the United States ; and their exemp- 
tion from taxation by the State, so long as they remained the property of 
the United States, and for five years after they should be sold. 

The object and effect of all such grants is to protect and preserve the 
common land fund ; to enhance the value of circumjacent lands, and to 
attract and secure purchasers at prices which could not be obtained unless 
such inducements were offered. Such grants are properly characterized in 
the language of the President as apparent donations ; for they are not 
gratuitous, but bestowed for a valuable consideration. They do not impair 
the land fund, diminish the aggregate money proceeds of the public do- 
main, reduce the revenue of the Government, impose any additional tax 
upon the people, or injure the interests of the United States, or of either of 
the States. On the contrary, such grants make valuable and saleable lands, 
which, without them, would be valueless and unsaleable, increase the ag- 
gregate proceeds of the public lands, add to the federal revenue, moderate 
the demands for taxation, and result in the common benefit of all the States 
of the Union. 

Upon the same principle on which those grants are made, Congress 
might dispose of the other property of the United States. If a govern- 
ment fleet, laden with public stores or the public money, should be stranded 
or sunk, Congress might give a ship or its contents in consideration of 
bringing the remainder into port, whereby the value of the property might 
be realized. If a gold mine should be found on public land, Congress 
might give a portion of its yield to any company that would work and 
develope its resources. In either case, as in granting alternate sections to 
build railroads, Congress achieves the purpose of its trust by making the 
best disposition of the trust-property for the benefit of its principals. 

Congress might, I presume, consistently with its power over the Terri- 
tory, and other property of the United States, have expended the public 
money in draining and reclaiming the swamp lands, and rendering them 
valuable. But as they were not only valueless to the United States, but 
impaired the value of their adjoining and cultivable lands, and as ex- 
perience in other Government works warranted the belief that it would cost 
the United States more than they would be worth after reclamation, it was 
a better discharge of its duties as trustee to give them to the States on con- 
dition of their reclamation. In all those grants to the new States, the in- 
tention of Congress, I apprehend, was not to foster their internal local in- 
terests — not to construct roads or establish schools, but to promote the 
settlement and sale of the lands, realize their money value, and thereby 



10 

effect the purpose for which power to dispose of the public lands was con- 
ferred. They were grants necessary to carry out its power to dispose of 
the public lands for their money value. 

Now, the supporters of this bill do not intend or expect to promote the 
settlement and sale of the public domain, or enhance its value, or increase 
the federal treasury by its passage. On the contrary, it will divert from 
the treasury the proceeds of ten millions of acres of land, equivalent to 
ten millions of dollars, for an object purely local within the States — the 
care of the insane. 

It must be conceded that if Congress'may provide for this class, it may 
for every other class of the unfortunate and afflicted, and may assume, in aid 
or behalf of the States, the supervision and care of all their internal and 
domestic interests. If Congress have such power, coupled with the ample 
means of unlimited discretion in disposing of the public property, I know 
of no government of any civilized and christian nation endowed with more 
sovereign, unlimited, and irresponsible power than that of the United 
States. Invested with untold and boundless wealth, a treasury overflowing 
and perpetually refilling, a domain broader and richer than that of any 
government, past or present, with resources unmeasured and undeveloped, 
there is no end it may not achieve, however sectional or unjust, anti-repub- 
lican or tyrannous. It may assume the patronage of States, counties or 
cities, of corporations, professions or trades, of agriculture, manufactures, 
or internal improvements. It may give the lands in Alabama to New York 
to be invested in banking, building railroads, or manufacturing broadcloth 
within that State ; and if it be objected that the Constitution does not con- 
fer on Congress power to establish banks, build roads, or engage in manufac- 
tures, it will be enough to answer, in the language of the advocates of this 
bill, that its power to dispose of the property of the United States is 
absolute and unlimited, save by the positive prohibitions of that instrument, 
and these are not among them. By virtue of this discretionary power 
over the public lands, and the absence of any express,, prohibition in the 
Constitution, we might violate that principle of non-intervention in the 
territories just established in the Kansas and Nebraska bill, by grant- 
ing alternate sections or townships of their lands to abolition socie- 
ties, upon condition of colonizing them with free blacks, or apply- 
ing the proceeds of the sale of the lands to the cause of emancipa- 
tion. Or, on the other hand, we might make them slave territories by 
granting the lands to settlers upon condition of cultivating them with slave 
labor. Thus, under this clause of the Constitution, every power possessed 
by the States over persons or property within them, may be absorbed by 
the General Government, and its character wholly transformed from one 
strictly federal into one purely national. And by a strained and latitudi- 
nous construction of a single clause, we may defeat all the labored precau- 
tions of the framers of the Federal Constitution, and convert it from a 
panoply of defence into a weapon of destruction to State rights and popu- 
lar sovereignty. 

Such I think is the inevitable consequence of the doctrines contended for 
by the advocates of this bill. 

They admit that Congress has no express authority or warrant to make 
provision for an eleemosynary purpose within the States, and do not pre- 
tend it is necessary to make such provision in order to carry out any ex- 
press power, or to attain any purpose named in the Constitution; but 
maintain, that we may dispose of the territory for any purpose not named 



11 

and not prohibited. If this be true, we have the strangest, most unique, 
and anomalous government ever fashioned by men : one of limited powers, 
but an unlimited choice anc). use of means for their execution ; of defined pur- 
poses, but indefinite discretion ; of good professions, but evil policy. The fra- 
mers of the Constitution were incapable of the folly of executing a charter 
containing principles so irreconcilable, and conferring powers so anti-parallel. 
Such is the method of madness, not of enlightened reason. They did not 
intend to create a government possessed of means to defeat the end of its 
institution. They did not convey the property of the Union, or any portion 
of it, to trusteed, without expressing the purpose of the trust. That purpose 
is declared in the end for which the Government is created ; which is exhibited 
not only in the whole face, but in every feature of the Constitution, and, 
likewise, in the 'articles of confederation and the history of our Revolution. 
That war was waged to defend and establish the right of the colonists to 
legislate for their internal and local interests — as we have heard so often 
repeated in the discussion of another measure during this Congress. The 
colonists conceded the right of England to legislate for their external in- 
terests, such as war, peace, and commerce. The English Parliament main- 
tained that the powers conceded implied the right of using all the means 
it deemed necessary and proper to execute those powers, and among those 
means was the enactment of several internal laws. The colonists contended 
that it was absurd to limit powers, and give unlimited means for their exe- 
cution. The Parliament concluded the discussion by assenting the right to 
legislate for the colonies in all cases, and in the exercise of that right levied 
some trifling internal taxes. And to seduce the colonies from the faithful 
maintainance of their rights, Parliament, while taxing their tea, reduced its 
price in their favor. A like temptation of pecuniary favor is offered the 
States in this bill; but I trust they will prove as incorruptible and faithful 
as the old thirteen in repelling every attempt at usurpation of their right 
of internal legislation. 

One Union was formed pending the Revolution, and another after its 
close ; both constructed with a most jealous care of the principle on which 
that war was fought, as evinced in the nature of the powers conferred, and 
the positive reservation to the States of all powers not delegated. On the 
confederation was bestowed most of the important powers granted to the 
second union, the main difference consisting in an enlargement of the 
means of the latter for executing granted powers, especially by giving to 
Congress a limited right of taxation. 

But, notwithstanding the few well-defined and limited powers set forth 
in the Constitution, because of the means of executing them given to Con- 
gress, especially that of internal taxation, the second union incurred the 
bitterest opposition. The common objection to the proposed changes in 
the Federal Government was, that they would render it too powerful, and 
enable it to absorb all those residuary authorities which should be left to 
the States for local purposes. To this objection those able defenders of the 
Constitution, the authors of the Federalist, replied that there could be no 
temptation in the mere domestic police of a State sufficiently strong to al- 
lure those entrusted with the federal administration ; that their subjects of 
superintendence, embracing commerce, finance, negotiation, war, comprised 
all that ambition could covet, while those things proper to be provided for 
by local legislation were conceded to the States. It was further urged, 
that the Federal Government would be ^confined to things mainly external 
io the States, and not immediately affecting persons or things within them. 



12 

and hence would not appeal to personal interest, or excite personal attach- 
ment; but on the contrary, the State governments, having the care of the 
domestic concerns of their citizens, and constantly impressing their minds 
with a sense of obligation, would inspire an habitual and strong attach- 
ment. And it was earnestly and sedulously repeated, in different forms of 
expression, that the Federal Government was invested with powers and de- 
signed for purposes wholly different from those of the State governments ; 
and for objects which could not be attained by the separate legislation of 
the latter. In proof of the construction of the Constitution, imputed by me 
to its framers, I will read some brief extracts from the numbers composed 
by Mr. Madison and General Hamilton, to be found in the ^Federalist," 
Mr. Madison says : 

" "We have seen that in the new government as in the old, that the States in all 
unenumerated cases, are left in the enjoyment of their sovereign and independent 
jurisdiction. ******** 

"Its jurisdiction is limited to certain enumerated objects, which concern all the 
members of the Republic, but are not to be attained by the separate provisions of 
any. The Federal and State governments are in fact but different agents and trus- 
tees of the people, intrusted with different powers, and designed for different 
purposes. ********* 

"The powers delegated, by the proposed constitution are few and definite. Those 
which are to remain in the State governments are numerous and indefinite. The 
former will be exercised principally on external objects, as war, peace, negotiation, 
and foreign commerce, with which last the power of taxation will for the most part 
be connected. The powers reserved to the several States will extend to all the ob- 
jects which, in the ordinary course of affairs, concern the lives, liberties, and prop- 
erties of the people, and the internal order, improvement, and prosperity of the 
State." 

Gen. Hamilton says : 

"The principal purposes to be answered by the Union are these: the common 
defence of the members; the preservation of the public peace as well against inter- 
nal convulsions as external attacks; the regulation of commerce with other nations 
and between the States; the superintendence of our intercourse, political and com- 
mercial, with foreign countries. ******** 

" The regulation of the mere domestice police of a State, appears to me, to hold 
out slender allurements to ambition. Commerce, finance, negotiation, war, seem to 
comprehend all the objects which have charms for minds governed by that passion; 
and all the powers necessary to those objects ought in the first instance, to be lodged 
in the national depository. The regulation of private justice between citizens of 
the State; the supervision of agriculture and of other concerns of a similar nature; 
all those things, in short, proper to be provided, for by local legislation, can never 
be desirable cases of a general jurisdiction. It is. therefore, improbable that there 
should exist a disposition in the Federal councils to usurp the powers with which 
they are connected." 

These extracts present but glimpses of the views of the Constitution, ex- 
pressed by two of its illustrious framers, which are more clearly and strongly 
developed by the entire numbers from which they are taken. But these 
are sufficient to show that the principle on which the Revolution was fought 
was thought to be vindicated in the Constitution ; that the right asserted and 
defended by the colonies against England, to legislate about all matters 
of mere domestic police, and proper to be provided for by local legislation, 
was intended to be reserved by the States in the Constitution, no less than 
in the articles of confederation ; that the new Union, as well as the old, was 
framed by the States for objects which they could not separately and singly 
attain, and invested only with such powers as were deemed necessary to 
attain those objects. 

The framers of our Charter of Government should be its best expounders, 



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for they certainly knew for what end they labored. Their construction will 
always be authoritative with me upon all clauses of doubtful import, if any 
such can be found. 

But, without the aid of expositions of its meaning, or the light of history, 
I think a mere comparison of the CoDstitution of the Union with that of 
any of the States, will prove that the State and Federal Governments were 
designed for different purposes and clothed with different powers. I can 
find but few instances where they are invested with the same power, to act 
in like manner, for a common object, upon the same subject; as in the cases 
of taxing the .same property and suppressing the same insurrection. Those 
few instances of concurrent power show that the State and Federal Govern- 
ments were planned to move in different orbits, and never to be in con- 
junction save in the appointed cases. 

The Federal Constitution, from its preamble to the article of ratification, 
shows that it was framed by the several States, as political individuals, and 
not by the unassociated people of all the States ; and was designed to man- 
age common interests of a community of States, and not various interests 
of men, or classes of men, composing States. The Executive power is ves- 
ted in a President of the United States; the Legislative power in a Con- 
gress of the United States. One legislative branch is styled the Seriate of 
the United States, the other the House of Representatives of the United 
States. In the beginning of the first decretal section of the Constitution, 
(the eighth section of the first article,) the end of congressional action is 
defined to be " to provide for the common defense and general welfare of the 
United States." All the prohibitory clauses of the Constitution are ad- 
dressed to the separate individuals, called States, or their representatives, 
the Congress of the United States, or to the associated individuals called 
United States. Excepting the last amendment of the Constitution, (which 
directs the mode of choosing the President and Vice President,) each amend- 
ment is a bastion erected to defend the wall of the Constitution against the 
assaults of Federal power, and to secure from its grasp the personal rights 
of the private individuals composing the personages called States. The 
Federal Government is expressly inhibited from taking any foothold wdthin 
the limits of a State against its assent. Congress is not allowed to exercise 
authority over any place within a State, except when "purchased by the 
consent of the Legislature of the State in which the same shall be," and, 
then, only for specific purposes, " the erection of forts, magazines, arsenals, 
dock-yards, and other needful buildings." Yea, it holds and controls the 
public lands in the States by their consent. No powers reserved by the 
States are represented in Congress, and no powers delegated to the Federal 
Government are represented in the State Legislatures. In short, the entire 
Constitution, and each part of it, whether in granting or prohibiting the 
exercise of power, shows that the States are the constituents of Congress, 
and their common interests the objects of legislation ; and that local and 
personal interests were reserved by the States for their exclusive care and 
superintendence. 

An analysis of the constitution of any State of the Union would establish 
its claim to the exclusive management of its domestic affairs, and strengthen 
the contrast between the rights and duties of the local and general govern- 
ments. 

The wisdom of the policy of our fathers has been fully attested by time 
and experience. Never has the Federal Government undertaken the 
building of a road, the digging of a canal, or any other work, for a State, 



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without proving, in the end, incompetent for the office assumed. Never 
has the peace of the country been disturbed, or the integrity of the Union 
threatened, save by a departure from the true theory of the Federal Gov- 
ernment in the exercise of unconstitutional or doubtful powers by Congress 
to foster domestic interests, or control persons or property within the States 
or Territories. Antl, sir, if we would preserve the true Federal spirit of the 
Constitution, which will forever bind together the States in the same hush- 
ing spell of compromise and tranquility, we will never intervene in the 
management of the domestic affairs of the local authorities. In the lan- 
guage of the President, which conveys a moral that cannot ^be too deeply 
impressed upon the public mind, or too fondly cherished in the public 
heart, " a strict adherence to the terms and purposes of the Federal com- 
pact offers the best, if not the only security for the preservation of our 
blessed inheritance of representative liberty." 

Is the care of the insane one of the "certain enumerated objects 11 of fede* 
ral jurisdiction mentioned in the Constitution ? — " not to be attained by the 
separate provisions of any " of the States — and not "proper to be provided 
for by local legislation? 11 Is it one of the specified cases of a concurrence 
of Federal and State powers ? Is it necessary to provide for the insane in 
order to execute any express power ? If these interrogatories, suggested by 
the commentaries on the Constitution of two of its immortal framers, can 
be answered affirmatively, then we have the power to pass this bill. But, if 
they cannot, then, in passing it, we abuse our trust, usurp the powers of the 
local authorities, and transgress the sacred boundary of separation between 
the State and Federal jurisdictions. 

I have thus endeavored briefly to portray my constitutional objections 
to disposing of the public lands in gratuitous donations ; more especially in 
providing for objects of exclusive local superintendence. I might prefer 
many objections of mere expediency, but they have been clearly and forcibly 
presented by the President in his veto message — a production scarcely less 
admirable for its purity of language than its soundness of principle. I will 
only add, by way of satisfaction to such of my constituents as may feel dis- 
appointed of the expected Federal bounty, that the share of Alabama would 
be far less than she would be entitled to if the apportionment had been 
proportionate to her share of Federal taxation ; and that in order to restore 
to the Federal treasury ten millions of dollars, diverted from it by this 
bill, she would be compelled to endure double the taxation of other States 
that would get more public land. And to magnify this gross injustice, she 
would be confined, by this bill, in her selection, to those barren rocky moun- 
tains, and sterile sandy plains, which compose the public lands yet unsold 
within her limits, which would not command one dollar, or perhaps fifty 
cents, per acre ; while other States holding no public lands within their 
limits, would be able to dispose of their fecrip at one or more dollars per 
acre, as purchasers would have choice of the best lands in the Union, 
And, in yet further violation of her rights she would be constrained to 
surrender the five per cent, of the net proceeds, of the granted lands 7 
although solemnly dedicated, by compact between her and the General 
Government, to internal improvement within her limits. Hence, had I no 
constitutional scruples, I would be unwilling to surrender her rights and 
abuse her interests by consenting to a bargain so iniquitous and unjust* 
She is already too heavily taxed for Federal bounties she does not enjoy. I 
will not add to her burdens to increase those bounties, I will not gor* 



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cede the choice of the public domain to other States, and accept for my 
own the refuse. 

I thank the President for exerting his constitutional prerogative to defeat 
a scheme whereby Alabama would have been first defrauded of her just 
share of that Common fund, the public domain, and afterwards despoiled by 
taxation of the poor portion assigned her. But I thank him more for vin- 
dicating the *rue principles of the Constitution and upholding and main- 
taining the rights of the States, which are the surest bulwarks against 
centralism, ar4 the safest guarantees of popular liberty. 



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